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Othieno Okoth Richard vs Ochai Maximus and Another (Election Petition No. 14 of 2021)

High Court · [2022] UGHCEP 6 · 2022 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Election petition challenging the declaration of the 1st Respondent as winner of the West Budama County North parliamentary seat, following a Court of Appeal order for retrial after the initial dismissal
Decision
Election petition dismissed; 1st Respondent's election as Member of Parliament upheld

Observed later treatment

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Holding

The High Court dismissed the election petition challenging the declaration of the 1st Respondent as Member of Parliament for West Budama County North. The court held that Bio-data Voter Verification Machines (BVVMs) are used for voter authentication, not for tallying results, and that the Electoral Commission properly relied on Declaration of Results Forms. The petitioner failed to adduce cogent evidence of ballot stuffing, voter intimidation, bribery, or other electoral malpractices that would have affected the election outcome in a substantial manner. The election was conducted in accordance with the law.

Outcome

Election petition dismissed; 1st Respondent's election as Member of Parliament upheld

Facts

The petitioner contested for Member of Parliament for West Budama County North in the 14 January 2021 elections. The 1st Respondent was declared winner with 10,981 votes against the petitioner's 9,856 votes. The petitioner challenged the election alleging irregularities including: improper use of Bio-data Voter Verification Machines (BVVMs), ballot stuffing at multiple polling stations, voter intimidation and harassment, bribery, and failure to position polling stations in open places. The petition was initially dismissed by the High Court, but the Court of Appeal set aside that judgment and ordered a retrial. At the retrial, counsel opted not to cross-examine any deponents of affidavits. The petitioner relied on affidavit evidence from witnesses at various polling stations and BVVM printouts allegedly obtained by a District Information Technology Officer.

Issues

  1. Whether the election for the position of directly elected Member of Parliament for West Budama County North Constituency in Tororo District was conducted in accordance with the law?
  2. Whether the non-compliance if any, affected the results in a substantial manner?
  3. Whether the 1st Respondent committed any illegal practices or electoral offences personally or through his agents with his knowledge, consent or approval?

Orders

  • Petition dismissed.
  • Costs awarded to the 1st Respondent and the 2nd Respondent.
  • Certificate for costs for two counsel denied to the 1st Respondent.

Rules and key headnotes

Electoral Law — Bio-data Voter Verification Machines — Purpose and Legal Status — Use for Voter Authentication Not Result Tallying
Bio-data Voter Verification Machines (BVVMs) introduced under the Electoral Commission (Adoption and Manner of Use of Technology In the Management of Elections) Regulations SI Number 2/2021 are used to improve the integrity of the electoral process through authentication of voter identity to eliminate electoral fraud through multiple voting, but they are not a substitute for the Voters Register and are not required by law for tallying or announcing results, which must be done from Declaration of Results Forms under sections 51 and 53 of the Parliamentary Elections Act.
Evidence — Electronic Evidence — Authentication Requirements — Burden of Proof
Under sections 8(2) of the Electronic Transactions Act and 29(2) of the Computer Misuse Act, a person seeking to introduce electronic records in legal proceedings bears the burden of proving authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be, and the court must assess evidential weight having regard to the reliability of the manner in which the data was generated, stored, communicated, and maintained, and the manner in which the originator was identified.
Electoral Law — Election Petitions — Burden and Standard of Proof — Cogent Evidence Required
In an election petition under section 61 of the Parliamentary Elections Act, the petitioner bears the burden of proving to the satisfaction of the court on a balance of probabilities that alleged irregularities or malpractices were indeed committed and that they affected the results in a substantial manner, and must adduce credible or cogent evidence which is free from contradictions, truthful and compelling as to convince a reasonable tribunal to give judgment in the petitioner's favour.
Evidence — Affidavit Evidence in Election Petitions — Evaluation with Caution — Partisan Nature
In evaluating affidavit evidence in election petitions, courts must exercise caution due to the fact that witnesses tend to be partisan and testimonies may contain deliberate falsehoods and exaggerations, and where evidence is contradictory or uncorroborated, it should be treated with suspicion and may be rejected.
Electoral Law — Electoral Offences — Bribery — Elements of Proof
To prove bribery in election matters, a petitioner must establish to the satisfaction of the court that: (i) a gift was given to a voter; (ii) the gift was given by a candidate or his agent; and (iii) the gift was given to induce the receiver to vote for the candidate or to influence a voter to refrain from voting for their preferred candidate, and it is necessary to call independent evidence to confirm the allegations since both the giver and receiver are accomplices in committing the offence.
Electoral Law — Setting Aside Elections — Gravity of Remedy — National and Individual Importance
Setting aside an election of a member of parliament is a very grave matter of both individual and national importance as it renders the affected constituency without a voice in Parliament for some time while Parliament continues to carry out its legislative function on matters of public national importance without representation of the affected constituency, and the elected member suffers both serious personal remorse and adverse financial effects.

Legislation cited (17)

Cases cited (10)

  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Another (Election Petition Appeal No. 56 of 2016)
  • Ssematimba Peter Simon and Another v Sekigozi (Election Petition Appeal No. 40 of 2016)
  • Okoth Othieno v Ochai Maximus and Electoral Commission (Election Petition Appeal No. 70 of 2021)
  • Rtd. Col. Dr. Kizza Besigye v Yoweri Kaguta Museveni and Another (Supreme Court Presidential Election Petition No. 1 of 2001)
  • Kasta Hussein Bukenya v Bukenya Balibaseka Gilbert and Another (Election Petition No. 29 of 2011)
  • Kabuusu Moses Wagaba v Lwanga Timothy and Electoral Commission (Election Petition No. 15 of 2011)
  • Kiiza Besigye v Yoweri Kaguta Museveni (Supreme Court Election Petition No. 1 of 2001)
  • Apolot Stella Isodo v Amongin Jacqueline (Election Petition Appeal No. 60 of 2016)
  • Karokora v Mondo Kagonyera (Election Petition No. 2 of 2001)
  • Karokora v Electoral Commission and Mondo Kagonyera (Election Petition No. 2 of 2001)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Othieno Okoth Richard vs Ochai Maximus and Another (Election Petition No. 14 of 2021) [2022] UGHCEP 6 (1 December 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.